DIVORCE LAWS AND PROCEDURES
VOID AND VOIDED MARRIAGE
- In the case of a void marriage the marriage never existed, so the man and woman are treated as if they were never married.
- There are no grounds for spousal support (although property rights between the respective man/woman may be established through contract law).
- A marriage is void when the following elements are present:
- incest (marriages between parents and children, brothers and sisters, aunts/uncles and nephews/nieces, and ancestors and descendants of every degree)
- In the case of a "voided" marriage, the marriage is valid until it is terminated by a judgment of nullity.
- The obligations and rights between the respective spouses continue until a court of law issues a judgment of nullity.
- a marriage may be voided if:
- one spouse was underage at the time of the marriage and failed to obtain the proper consent
- one spouse lacked the mental capacity to give consent
- consent to the marriage was obtained through fraud
- consent to the marriage was obtained through force
Residency: One of the spouses must have been a resident for 6 months prior to filing for dissolution of marriage.
The dissolution of marriage should be filed in either:
- the county where the defendant resides or
the county where the spouses last lived together prior to separating. [Florida Case Law and Florida Statutes Annotated; Chapter 61.021].
GROUNDS FOR DSIVORCE
- No-Fault meaning irretrievable breakdown of the marriage.
- General grounds may be
- Mental incapacity for at least 3 years.
- A petition for dissolution of marriage shall be filed with the Circuit Court.
- The divorce decree may be passed by following simplified dissolution of marriage procedure or through specific
- Florida has a procedure for Simplified Dissolution of Marriage. In order to qualify to use this procedure, the spouses must certify that:
- there are no minor or dependent children of the spouses and the wife is not pregnant;
- the spouses have made a satisfactory division of their property and have agreed as to payment of their joint obligations;
- that 1 of the spouses has been a resident of Florida for 6 months immediately prior to filing for dissolution of marriage; and
- that their marriage is irretrievably broken.
- The spouses must appear in court to testify as to these items and file a Certificate of a Corroborating Witness as to the residency requirement.
Each must also attach a financial affidavit to the Simplified Dissolution Petition.
MEDIATION OR COUNSELING REQUIREMENTS
- The court may delay the proceedings for up to 3 months and may order the spouses to seek counseling, order the spouses to attempt reconciliation, or order the spouses to attend mediation sessions
- If there are minor children involved, or
if one of the spouses denies that the marriage is irretrievably broken
- The spouse's will retain non-marital property (all property acquired prior to the marriage, property acquired by gift or inheritance, and any property considered to be non-marital according to a written agreement between the spouses.
- All of the spouse's marital property may be divided on an equitable basis, based on the following factors:
- the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker;
- the length of the marriage;
- the age and health of the spouses;
- the amount and sources of income of the spouses;
- the estate, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income;
- the standard of living established during the marriage;
- the time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment; and
any other factor necessary to do equity and justice between the spouses.
ALIMONY OR SPOUSAL SUPPORT
- The court may grant rehabilitative or permanent alimony to either spouse in either lump-sum or periodic payments or both.
- Factors that may be considered by the court while awarding alimony to any spouse are:
- the time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity;
- the standard of living established during the marriage;
- the duration of the marriage;
- the comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
- the contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse;
- the age of the spouses;
- the physical and emotional conditions of the spouses;
- each spouse's share of marital assets and liabilities; and
any other factor the court deems just and equitable.
- The court may order either parent to pay child support during and after a dissolution of marriage proceeding in an equitable amount, based on the nature and circumstances of the case.
- Factors that may be considered by the court while awarding the child support
- extraordinary medical, psychological, educational, or dental expenses;
- independent income of the child;
- the custodial parent receiving both child support and spousal support;
- seasonal variations in a parent's income or expenses;
- the age of the child, taking into consideration the greater needs of older children;
- any special needs of the family;
- the terms of any shared parental arrangement;
- the total assets of the parents and the child;
- the impact of any IRS Dependency Exemption; and
- any other reason that should be considered in order to make the child support payments equitable.
Health insurance for the child and life insurance covering the life of the parent ordered to pay support may be required by the court. Child support payments may be ordered to be paid through a state depository.
ANNULMENT OF MARRIAGE
- The law does not allow people to enter into a marriage contract when they are otherwise legally incapable of making such a contract.
- Therefore, if you were to marry someone who was still married to another, that marriage would be void from its beginning as no legal contract of marriage was ever recognized.
- An annulment of the marriage means a marriage, which never existed from its very beginning.
- A dissolution of marriage or divorce is a recognition that at one time there was a lawful marriage contract but that the contract has been dissolved by law.
A person seeking annulment of marriage is entitled to the same types of support and rights that a person seeking a divorce would be entitled to.
If the marriage was not valid, for reasons that existed at the time of the purported "marriage", the union between the man and the woman can be treated as being "void" or "voided", and grounds for a lawsuit of nullity may be pursued in state court.